How to Evaluate International Lawmaking: Democratic Legitimacy v. Popular Sovereignty

by Julian Ku

I very much enjoyed reading Professor Hathaway’s very strong contribution to an already strong literature on the relationship between treaties and executive agreements in U.S. law. In my view, the particular strength of the article lies in its empirical analysis of U.S. treaty and executive agreement practice, an analysis that has rarely been done in prior work on the subject.

Indeed, it strikes me that Oona’s article offers new support for the proposal made in John Yoo’s 2001 Michigan Law Review article, which also proposed relying on CEAs for everything that falls within Congress’ Article I powers. Yoo’s justification was on somewhat different grounds, but both Yoo and Hathaway end up in roughly the same place. If there is anything that is outside of Congress’ Article I powers, then Article II treaties can be used to take care of those kinds of agreements. The only difference, as far as I can tell, is that Oona does not think there are likely to be many such Article II treaties. Both Yoo and Hathaway, though, would be content for the vast majority of international agreements to go through the CEA process, but neither is arguing for true “interchangeability” in the sense that CEAs are exactly co-extensive with Article II treaties.

Additionally, the Yoo and Hathaway articles both invoke democratic legitimacy to justify the use of CEAs over Article II treaties. This is a powerful and important rationale for evaluating international lawmaking which is too often ignored by prior scholarship in the foreign relations area.

So far so good. If John Yoo and Oona Hathaway can agree on a proposal, and even that democratic legitimacy is a crucial justification for their proposal, there is decent chance that a consensus is developing somewhere (and who am I to disagree?).

And yet, I am not quite fully on board. It strikes me that, even more than democratic legitimacy, international lawmaking in the United States must also comport with American notions of popular sovereignty. Popular sovereignty, in my view, explains why the formal requirements of the Constitution for public lawmaking (e.g. the presentment requirement) should be adhered too even if they are less efficient or even if they are less democratically legitimate (see, e.g., the Electoral College, the Senate, etc). The touchstone of legitimacy for U.S. public lawmaking, I suggest, is not simply that the most democratic method is used, but whether the method comports with the mechanisms embedded in the U.S. Constitution by acts of “popular sovereignty” (or to use Professor Ackerman’s terminology, higher lawmaking).

By this criterion, treaty-making is more legitimate than CEAs because it is a product of “popular sovereignty” that embedded lawmaking mechanisms into the U.S. government structure. Note that legitimacy is not the same as “the most democratic system.” Rather, the argument is that changing the structure too fundamentally, even for the best of reasons, undermines the basic foundation of the U.S. system of constitutional government.

I think Professors Ackerman and Golove recognized the importance of popular sovereignty in their search for a post-WWII act that would qualify as an act of “higher lawmaking” that would justify CEAs. I’m less sure they found such a qualifying act, but I agree with the necessity of finding one that would justify the dramatic shift away from existing practice that Professor Hathaway is proposing.

One Response

I too have enjoyed these exchanges. Overnight it occurred to me that once again the intense discussion is a discussion in U.S. foreign relations law exclusively – which mechanism of treaty making makes a difference for the US in how it gives legitimacy to the international obligations.

Yet, we are only months or weeks away possibly from a Sole Executive Agreement between the United States and Iraq with potentially profound implications for this country. That members of Congress might consider such an agreement illegitimate for not being a CEA or a Treaty may not mean much in a situation where there will not be enough members of Congress to do anything about it. Even if the members of congress try to pass a law of some kind it would be vetoed and there would be no veto proof majority.

The net effect is that a treaty obligation as a matter of international law will arise that is an obligation of the United States and, respectively, Iraq.

The internal Constitutional structuralism facts about legitimacy of a specific manner of entering the treaties appear to be of no moment. On the international plane they are irrelevant. Internally, we do such a poor job of explaining these obligations as international obligations to law students, let alone as members of Congress, the Executive, or the Judiciary, or out in the countryside. The legitimation of these treaties is done by power centers in the government and civil society aligning themselves with the treaty obligation or not. I think that is why the trade engagements go down the path that they do and have the binding effect while other types of treaties are discounted.

It is not the democratic process or the popular sovereignty that provides the legitimacy but it is rather the acceptance of the norm internally and externally that then acts on these processes or popular opinions. I am reading Ian Clark, International Legitimacy and World Society and finding it a very interesting discussion of these pathways to meaning about obligations.

Best,

Ben

3.21.2008
at 3:44 pm EST Benjamin Davis

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